Citation Nr: 0711390
Decision Date: 04/17/07 Archive Date: 05/01/07
DOCKET NO. 03-10 720 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
No. Little Rock, Arkansas
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for
bilateral plantar fasciitis.
2. Entitlement to a total disability rating based on
individual unemployability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1976 to
September 1982 and from October 1990 to May 1991 and with
intervening and subsequent service in the Army Reserve. This
case comes to the Board of Veterans' Appeals (Board) from a
June 2002 rating decision denying entitlement to a rating in
excess of 10 percent for bilateral plantar fasciitis and
denying entitlement to a total disability rating based on
individual unemployability. The veteran's disability rating
for bilateral plantar fasciitis was increased to 30 percent
(from the date of the veteran's claim for an increased
rating, February 2002) in an August 2002 rating decision.
Since this increase does not constitute a full grant of the
benefit sought, the increased rating issues remain in
appellate status. AB v. Brown, 6 Vet. App. 35 (1993).
FINDINGS OF FACT
1. The veteran's bilateral plantar fasciitis is
characterized by symptoms such as pain, tenderness, some
hammer digit syndrome, some pes cavus deformity, and
occasional calcaneal spurs. The veteran's symptoms are
largely managed by his use of special shoes and boots.
2. The veteran is not precluded from all forms of
substantially gainful employment by reason of service
connected disability.
CONCLUSIONS OF LAW
1. The veteran does not meet, nor more nearly approximate,
the criteria for a rating in excess of 30 percent for
bilateral plantar fasciitis. 38 U.S.C.A. §§ 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a Diagnostic Codes
5276 and 5278 (2006).
2. The veteran does not meet the criteria for total
disability evaluation based on individual unemployability.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA is required to notify the veteran of 1) the information
and evidence needed to substantiate and complete his claims;
2) what part of that evidence he is responsible for
providing; 3) what part of that evidence VA will attempt to
obtain for him; and 4) the need to send the RO any additional
evidence that pertains to his claims. 38 C.F.R. § 3.159. In
partial compliance with the duty to notify regarding the
issue of entitlement to an increased rating for bilateral
plantar fasciitis, VA sent a development letter in March 2002
prior to initial adjudication by the RO. The veteran has not
been prejudiced by inadequate notice because he has been
provided with every opportunity to submit evidence and
argument in support of his claims, was sent complete
notification letters regarding both issues on appeal in March
2005 and May 2006, and has been provided with the entire text
of 38 C.F.R. § 3.159 in a supplemental statements of the case
issued in June 2005 and November 2006. Any defect with
respect to the notice requirement in this case was harmless
error.
VA also has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. Here, the RO obtained the
veteran's VA treatment records and private medical records.
VA attempted to obtain further private medical records,
however, the veteran did not respond to notice sent in May
2006 asking for additional information necessary to obtain
the possibly outstanding private medical records. There does
not appear to be any other evidence, VA or private, relevant
to the claims at this time that VA has not already attempted
to obtain.
The evidence and information of record, in its totality,
provides the necessary information to decide the case at this
time. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 4.2. Any
additional development efforts would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994). The appellant has
been provided the appropriate notice and assistance prior to
the claims being adjudicated by the Board and prior to the
last final adjudication by the RO. See Overton v. Nicholson,
20 Vet. App. 427 (2006). Therefore, the veteran is not
prejudiced by the Board's adjudication of his claims.
II. Claim for Increased Disability Rating
The veteran filed a claim for an increased rating for
bilateral plantar fasciitis in February 2002. In October
1995, the veteran initially received a 10 percent disability
rating for bilateral plantar fasciitis. In August 2002, the
RO issued a rating decision which increased the veteran's
disability rating for bilateral plantar fasciitis to the
present level of 30 percent (from the date of the veteran's
claim for an increased disability rating in February 2002)
which the veteran now claims should be increased. Where, as
here, initial entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155;
38 C.F.R. § Part 4. Where there is a question as to which of
two disability evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
38 C.F.R. § 4.7. Each disability must be viewed in relation
to its history and there must be emphasis upon the limitation
of activity imposed by the disabling condition. 38 C.F.R.
§ 4.1. Examination reports are to be interpreted in light of
the whole recorded history and each disability must be
considered from the point of view of the appellant working or
seeking work. 38 C.F.R. § 4.2.
The veteran's current 30 percent disability rating is based
on the criteria for rating bilateral plantar fasciitis found
at 38 C.F.R. § 4.71a, Diagnostic Code 5267. The rating
criteria for disabilities of the feet are found under
38 C.F.R. § 4.71a, Diagnostic Code 5267-5284. The only
diagnostic codes that allow disability ratings of greater
than 30 percent (at which the veteran is currently rated) are
diagnostic code 5276 under which the veteran is currently
rated, and diagnostic code 5278.
Under diagnostic code 5276, a 30 percent rating is warranted
where the veteran presents with acquired flatfoot that is
pronounced (marked pronation, extreme tenderness of plantar
surfaces of the feet, marked inward displacement and severe
spasm of the tendo achillis on manipulation, not improved by
orthopedic shoes or appliances) unilaterally, or where it is
severe (objective evidence of marked deformity such as
pronation or abduction, pain on manipulation and use
accentuate, indication of swelling on use, characteristic
callosities) bilaterally. A 50 percent rating, the highest
rating available under this diagnostic code, is warranted for
acquired flatfoot that is pronounced (see above for details)
bilaterally.
Under diagnostic code 5278, a 30 percent rating is warranted
where the veteran presents with acquired claw foot (pes
cavus) which is marked contraction of plantar fascia with
dropped forefoot, all toes hammer toes, very painful
callosities, and marked varus deformity unilaterally. A 50
percent rating, the highest available rating under this
diagnostic code is warranted where the same symptoms are
presented bilaterally.
The veteran has submitted VA and private medical records
outlining the symptoms of his bilateral plantar fasciitis.
An October 2001 podiatry clinic note in the veteran's VA
treatment records indicates that the veteran's shoes were
working well for him and that he had no change in overall
appearance of his "high-arched feet." The diagnosis made
at this time was pes cavus and the special boots seemed to be
effectively treating any symptoms.
An April 2002 VA examination indicated that the veteran "is
having some pain, but not as severe as several years ago."
The veteran noted a burning pain, numbness, and tingling in
the past. The veteran complained of morning stiffness and
pain which would subside as the day progressed. He wears
special shoes while at work as his job requires him to be on
his feet. The left foot appeared more symptomatic than the
right as the "pain on the left is more on the lateral aspect
of the foot than on the bottom...a stabbing-type pain in the
heel region of the right foot." His gait was normal both
with and without shoes. Alignment of the feet was normal.
No redness, heat, swelling, or tenderness was noted. "He
had full range of motion of the toes of both feet. He did
have some mild heel pad tenderness bilaterally. No plantar
callus formation is noted." And, the physician noted there
was no pain on range of motion testing. The physician
concluded with the impression that the veteran had "service-
connected bilateral plantar fasciitis (heel spur syndrome)."
An August 2002 letter from a private physician noted that
"on exam there is palpable pain present at the plantar
aspect of both the right and left heel near the insertion of
the Achilles tendon. The tendon appears to be intact with no
palpable deficients noted. There is no significant posterior
edema noted on today's exam. He does have a significant pes
cavus foot deformity and his neurovascular status appears to
be grossly intact. I feel his symptoms are characteristic of
chronic Achilles tendonitis." The veteran complained of
increasing pain on standing and problems performing his job
which requires him to be on his feet for much of the time.
The private physician recommended new orthopedic shoes to
help alleviate the pain on standing.
A September 2003 letter from the same private physician noted
that the veteran had chronic pain in both feet and tingling
in some toes. "Physical exam revealed contracture of his
lesser digits consistent with hammer digit syndrome. Pes
cavus foot deformity is noted as before but no visible skin
lesions are present. His neurovascular status appear to be
intact." The examiner recommended new orthotic devices to
relieve toe pain.
The veteran's further VA treatment records indicate a
podiatry examination in January 2004 at which time the
veteran was diagnosed as having both pes cavus and plantar
fasciitis. The veteran was noted to have mild tenderness in
the left heel but not acute and no other areas of discomfort
or change in appearance. A December 2004 podiatry
examination indicated a diagnosis of pes cavus and otherwise
only discussed the veteran's request for new boots. A
January 2005 podiatry notation indicates the receipt of new
boots. At a February 2005 podiatry notation, the veteran
complained of pain causing him to walk with a limp. The
examiner noted "high arch type foot with excessive subtular
joint supination. Patient ambulates with adducted gait and
heels invert slightly. Pain and tenderness of the plantar
surface of the calcaneus area or the medial tubercle of both
feet. Also, tenderness along course of plantar fascia. The
heel area is not swollen and there is no redness or evidence
of cellulitis." The veteran was again diagnosed as having
pes cavus, in addition to calcaneal spurs which were revealed
upon x-rays. The veteran's most recent treatment note
regarding his feet is dated March 2005 and indicates that he
complained once again of pain in his feet due to chronic
plantar fasciitis. At this time, the veteran was also noted
to have calcaneal spurs and a cavus deformity of the foot.
While the veteran has presented with pain and some deformity
as a result of pes cavus and plantar fasciitis, his symptoms
are not severe nor marked in nature so as to warrant a rating
in excess of 30 percent for bilateral plantar fasciitis. The
medical evidence presented indicates that his symptoms
include tenderness of the plantar fascia, slight pain of the
Achilles tendon, some hammer toes and callosities on both
feet. The veteran's symptoms are continually noted to be
abated with the proper use of fitted orthopedic shoes. There
has been no medical evidence submitted to suggest that he has
marked pronation, extreme tenderness, severe spasms, marked
contraction, all toes hammer toes, very painful callosities,
nor marked deformities, despite the fact that he has on
occasion suffered milder forms of many of these symptoms. As
a result, the evidence presented does not suggest nor more
nearly approximate the criteria for a rating in excess of 30
percent for bilateral plantar fasciitis. There is no
material doubt to be resolved in the veteran's favor in this
case. 38 U.S.C.A. § 5107.
III. Claim for Total Disability Evaluation based on
Individual Unemployability
The veteran has also claimed entitlement to a total
disability evaluation based on individual unemployability.
Total disability evaluation based on individual
unemployability (TDIU) is considered to exist when there is
present any impairment of mind or body, which is sufficient
to render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340(a)(1).
TDIU ratings are authorized for any disability or combination
of disabilities for which the rating schedule prescribes a
100 percent evaluation or, with less disability where the
requirements of 38 C.F.R. § 4.16 are met. See 38 C.F.R. §
3.340(a)(2). TDIU ratings for compensation may be assigned
if the schedular rating is less than total and the veteran is
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities, provided that
if there is only one such disability, such disability shall
be ratable as 60 percent or more and if there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more and sufficient additional disability to
bring the combined rating to 70 percent or more. 38 C.F.R. §
4.16(a).
The veteran fails to meet the basic schedular requirements
for TDIU since he has only one service connected disability,
and it is not rated as 60 percent disabling or more. See 38
C.F.R. § 4.16(a).
The veteran can also be considered for an extraschedular
rating if he is unemployable due to his service-connected
disabilities. 38 C.F.R. § 4.16(b). Where, as in this case,
the veteran does not meet the percentage requirements for a
total rating set out in 38 C.F.R. § 4.16(a), the Board lacks
the authority to grant a total rating in the first instance.
Bowling v Principi, 15 Vet. App. 1, 10 (2001). In such a
case, VA must refer the matter to VA's Compensation and
Pension (C&P) Director for initial consideration under the
provisions of 38 C.F.R. § 4.16(b). Id. Referral is required
where there is a plausible basis for concluding that the
veteran is unable to secure and follow a gainful occupation.
Id. at 9. Unlike the criteria for an extraschedular rating
under 38 C.F.R. § 3.321, the grant of an extraschedular
rating for TDIU under 38 C.F.R. § 4.16 is based on a
subjective standard that seeks to determine if a particular
veteran is precluded from employment based on his service-
connected disabilities. See VAOPGCPREC. 6-96 (1996). This
means that the Board should take into account the veteran's
specific circumstances including his disability, his
education, and his employment history when determining if he
is unable to work.
Here, the veteran is service-connected for bilateral plantar
fasciitis, discussed above, and is currently rated as 30
percent disabling. While the veteran has claimed entitlement
to service connection for other conditions, none have been
service-connected. The veteran's VA treatment records and
private medical records submitted suggest in no way that the
veteran is disabled to the point of not being able to work.
In fact, a June 2004 VA treatment note mentioned that the
veteran was holding two jobs, a day job as an electronic
repairman, and a night job as a dishwasher and his VA
treatment records continually note that his orthopedic shoes
allow him to maintain employment despite his having to be on
his feet while on the job. While the veteran expressed
disappointment in not making more money and was referred to
vocational rehabilitation as a result, he in no way appeared
to be so disabled as to not be able to work. In May 2006,
the veteran was issued a letter explaining that further
information regarding his employment history, or lack
thereof, was necessary evidence for this claim. The veteran
has not responded to this letter with any further evidence
regarding his employment status. As a result of the
foregoing, there is no evidence of record that the veteran is
disabled to the point of being unemployable. As such, his
claim is denied and there is no issue of material fact to be
resolved in his favor. 38 U.S.C.A. § 5107.
ORDER
Entitlement to a rating in excess of 30 percent for bilateral
plantar fasciitis is denied.
Entitlement to a total disability rating based on individual
unemployability is denied.
____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs